Pemco Aeroplex, Inc. v. Moore

• Decision Date: 17 December 1999
• Citation: 775 So.2d 215
• Court: Alabama Court of Civil Appeals
• Parties: PEMCO AEROPLEX, INC v. Richard K. MOORE.

775 So.2d 215

PEMCO AEROPLEX, INC v. Richard K. MOORE.

2981042.

Court of Civil Appeals of Alabama.

December 17, 1999.

Rehearing Denied February 11, 2000.

Certiorari Denied June 23, 2000.

Bennett L. Pugh and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.

Paul F. Laning of Laning & Laning, Birmingham, for appellee.

Alabama Supreme Court 1990976.

CRAWLEY, Judge.

In March 1998, Richard K. Moore (the "worker") sued Pemco Aeroplex, Inc. (the "company"), alleging that he had been injured in the line and scope of his employment and requesting workers' compensation benefits and expenses. After hearing ore tenus evidence, the trial court found the worker to be 35% permanently partially disabled from a work-related injury and awarded benefits accordingly. The company appeals.

Our review of this case is governed by the new Workers' Compensation Act, which states in pertinent part: "In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence." Ala.Code 1975, § 25-5-81(e)(2). Therefore, this court "will view the facts in the light most favorable to the findings of the trial court." Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ. App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996). Further, this court "will not reverse the trial court's finding of fact if that finding is supported by substantial evidence—if that evidence is supported by `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West [v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)]; [Ala.Code 1975,] § 12-21-12(d)." Ex parte Trinity Indus. at 268.

The company argues that the trial court erred by considering evidence of a vocational disability because the worker returned to work earning the same rate of pay or an increased rate. The company argues that the trial court should have applied Ala.Code 1975, § 25-5-57(a)(3)i., the "return-to-work" provision, which states in pertinent part:

"If, on or after the date of maximum medical improvement, ... an injured worker returns to work at a wage equal to or greater than the worker's preinjury wage, the worker's permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability."

The presumption that a worker who returns to work earning the same wages or increased wages has no loss of earning capacity

"`"may be rebutted by evidence independently showing incapacity or explaining away the post-injury earnings as an unreliable basis for estimating capacity. Unreliability of post-injury earnings may be due to a number of things; increase in general wage levels since the time of the accident; claimant's own greater maturity or training; longer hours worked by claimant after the accident; payment of wages disproportionate to capacity out of sympathy to the claimant; and the temporary and unpredictable character of post-injury earnings."'"

Brown v. Champion Int'l Corp., 693 So.2d 24, 27 (Ala.Civ.App.1996), quoting Jim Walter Resources, Inc. v. Hall, 516 So.2d 690, 691 (Ala.Civ.App.1987) (quoting 2 A. Larson, The Law of Workmen's Compensation § 57.21(d) (1987)).

The worker had been employed by the company as an aircraft mechanic. His job duties required him to use power tools. He injured his wrist in October 1995. He returned to work in February 1996 with certain restrictions; one restriction was that he not use power tools such as impact and torque wrenches. Upon returning, the worker was employed as an inspector; an inspector's duties were within his restrictions. He earned the same salary he had earned as a...